Notice2022-05384
Certain Wrapping Material and Methods for Use in Agricultural Applications; Notice of Commission Determination To Review in Part a Final Initial Determination Finding No Violation of Section 337; Schedule for Filing Written Submissions; Extension of Target Date
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Published
March 15, 2022
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission has determined to review in part the final initial determination ("final ID") issued by the presiding administrative law judge ("ALJ") on December 10, 2021, finding no violation of section 337 of the Tariff Act of 1930, as amended. The Commission requests briefing from the parties on certain issues under review, as indicated in this notice. The Commission also requests briefing from the parties, interested government agencies, and interested persons on the issues of remedy, the public interest, and bonding. The Commission has also determined to extend the target date for the completion of the investigation to May 9, 2022.
Full Text
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<title>Federal Register, Volume 87 Issue 50 (Tuesday, March 15, 2022)</title>
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[Federal Register Volume 87, Number 50 (Tuesday, March 15, 2022)]
[Notices]
[Pages 14572-14574]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-05384]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1210]
Certain Wrapping Material and Methods for Use in Agricultural
Applications; Notice of Commission Determination To Review in Part a
Final Initial Determination Finding No Violation of Section 337;
Schedule for Filing Written Submissions; Extension of Target Date
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to review in part the final initial
determination (``final ID'') issued by the presiding administrative law
judge (``ALJ'') on December 10, 2021, finding no violation of section
337 of the Tariff Act of 1930, as amended. The Commission requests
briefing from the parties on certain issues under review, as indicated
in this notice. The Commission also requests briefing from the parties,
interested government agencies, and interested persons on the issues of
remedy, the public interest, and bonding. The Commission has also
determined to extend the target date for the completion of the
investigation to May 9, 2022.
FOR FURTHER INFORMATION CONTACT: Ronald A. Traud, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-3427. Copies of non-
confidential documents filed in connection with this investigation may
be viewed on the Commission's electronic docket (EDIS) at <a href="https://edis.usitc.gov">https://edis.usitc.gov</a>. For help accessing EDIS, please email
<a href="/cdn-cgi/l/email-protection#eeabaaa7bddda68b829eae9b9d879a8dc0898198"><span class="__cf_email__" data-cfemail="c287868b91f18aa7aeb282b7b1abb6a1eca5adb4">[email protected]</span></a>. General information concerning the Commission may
also be obtained by accessing its internet server at <a href="https://www.usitc.gov">https://www.usitc.gov</a>. Hearing-impaired persons are advised that information on
this matter can be obtained by contacting the Commission's TDD terminal
on (202) 205-1810.
SUPPLEMENTARY INFORMATION: On August 11, 2020, the Commission
instituted this investigation based on a complaint filed on behalf of
Tama Group of Israel and Tama USA Inc. of Dubuque, Iowa (together,
``Tama''). 85 FR 48561-62 (Aug. 11, 2020). The complaint alleged
violations of section 337 of the Tariff Act of 1930, as amended, 19
U.S.C. 1337, based upon the importation into the United States, the
sale for importation, and the sale within the United States after
importation of certain wrapping material and methods for use in
agricultural applications by reason of infringement of one or more of
claims 1, 2, 4-16, 18, 28, 32, 33, and 35-45 of U.S. Patent No.
6,787,209 (``the '209 patent''). Id. The Commission's notice of
investigation named as respondents Zhejiang Yajia Cotton Picker Parts
Co., Ltd. of Zhuji City, China (``Yajia Cotton''); Southern Marketing
Affiliates, Inc. of Jonesboro, Arkansas (``SMA''); Hai'an Xin Fu Yuan
of Agricultural, Science, and Technology Co., Ltd. of Nantong, China
(``XFY''); and Gosun Business Development Co. Ltd. of Grande Prairie,
Canada (``Gosun''). Id. at 48561. The Office of Unfair Import
Investigations is not participating in this investigation. Id.
The Commission previously terminated this investigation with
respect to Gosun. Order No. 6, unreviewed by Notice (Oct. 5, 2020).
Based on Tama's motion, the Commission later amended the complaint
and notice of investigation to add Zhejiang Yajia Packaging Materials
Co., Ltd. (``Yajia Packaging'') as a respondent. Order No. 8,
unreviewed by Notice (Oct. 27, 2020); 85 FR 68,916 (Oct. 30, 2020).
Yajia Cotton and Yajia Packaging are collectively referred to herein as
``Yajia.'' Yajia, SMA, and XFY are collectively referred to herein as
``Respondents.''
On November 16, 2020, XFY was found in default pursuant to
Commission Rule 210.16 (19 CFR 210.16). Order No. 11, unreviewed by
Notice (Nov. 30, 2020).
On December 10, 2021, the ALJ issued the final ID, which found that
Respondents did not violate section 337. The final ID found (1) that
Tama no longer asserts claims 15, 16, 18, 28, and 45 of the `209
patent; (2) the importation or sale requirement of section 337 has been
satisfied; (3) the Accused Products infringe claims 1, 2, 4-7, and 10-
14 of the '209 patent; (4) Yajia and SMA do not infringe claims 32, 33,
35-38, and 41-44 of the '209 patent; (5) the technical prong of the
domestic industry requirement for the '209 patent has been satisfied;
(6) the '209 patent is not invalid; and (7) the economic prong of the
domestic industry requirement has not been satisfied. The ALJ's
Recommended Determination on remedy and bonding (``RD'') recommended
that should the Commission find a violation, it should issue a limited
exclusion order directed to certain wrapping material and methods for
use in agricultural applications imported, sold for importation, and/or
sold after
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importation by respondents Yajia, SMA, and XFY. The RD further
recommended that the issuance of cease and desist orders would be
unnecessary. The RD additionally recommended that the Commission set a
bond during the period of Presidential review using a price
differential between the Accused Products and Tama's TamaWrap products.
Thus, the CALJ recommended that the Commission set a bond in the amount
of $119 (or 20%) for Tama's Premium product and $23 (or 4%) for Tama's
Blue Value product. The Commission did not instruct the CALJ to make
findings concerning the public interest.
On December 27, 2021, Yajia and SMA filed a joint petition for
review, and Tama also filed a petition for review. On January 4, 2022,
Yajia Cotton and SMA filed a joint response to Tama's petition for
review, and Tama filed a response to Yajia and SMA's joint petition for
review.
The Commission received no public interest comments from the public
in response to the Commission's Federal Register notice seeking comment
on the public interest. 86 FR 71664-65 (Dec. 17, 2021). Tama, Yajia,
and SMA did not submit any public interest comments pursuant to
Commission Rule 210.50(a)(4) (19 CFR 210.50(a)(4)).
Having examined the record in this investigation, including the
final ID, the petitions for review, and the responses thereto, the
Commission has determined to review the final ID in part. In
particular, the Commission has determined to review the following:
(1) The final ID's findings that Yajia and SMA do not infringe
claims 32, 33, 35-38, and 41-44 directly or indirectly; and
(2) the final ID's finding that the economic prong of the domestic
industry requirement has not been satisfied.
The Commission has determined not to review the remainder of the final
ID.
The Commission has also determined to extend the target date for
the completion of the investigation to May 9, 2022.
The parties are requested to brief their positions with reference
to the applicable law and the evidentiary record regarding the
questions provided below:
(1) Under Commission and judicial precedent, section 337 and its
legislative history, and any other relevant authority, is a license
(express or otherwise) between Tama and John Deere & Co. (``Deere'')
necessary for the Commission to consider Deere's investments in its
On-Board Module Harvesters, including model numbers 7760, CP690, and
CS690 (``the Deere Machines''), towards Tama's satisfaction of the
economic prong of the domestic industry requirement? Or, is it
sufficient that Deere and Tama collaborated to design a system that
requires Tama's TamaWrap and Deere's Deere Machines? Is it necessary
that Tama authorized Deere to use the patented devices and methods?
(2) What evidence is in the record that shows that Deere was
authorized to use the '209 patent?
(3) Under Commission and judicial precedent, section 337 and its
legislative history, and any other relevant authority, if the
Commission considers Deere's investments in the categories listed in
section 337(a)(3)(A)-(C) towards the satisfaction of the economic
prong of the domestic industry requirement, to what extent and in
which statutory category(ies) should the Commission consider the
Deere expenditures? For example, should such expenditures be in
TamaWrap itself and/or the method of using TamaWrap; should such
expenditures be related to ensuring TamaWrap is compatible with the
Deere Machines; should such expenditures have some other connection
to TamaWrap and/or the '209 patent; or, should all expenditures
related to the Deere Machines in each relevant statutory category
contribute towards the satisfaction of the domestic industry
requirement?
(4) What evidence is in the record that Deere specifically
invested in TamaWrap and/or the method of using TamaWrap? For
example, what activities did Deere undertake to ensure the Deere
Machines would work well with TamaWrap?
(5) What part of the Deere Machines are specifically designed to
interact with TamaWrap and what, if any, of Deere's investments
asserted by Tama were specifically related to that portion of the
Deere Machines and/or ensuring that Deere Machines are compatible
with TamaWrap?
(6) Does the ``article[ ] protected by the patent'' (19 U.S.C.
1337(a)(3)) differ for the asserted apparatus claims and method
claims? For example, are the Deere Machines ``articles protected by
the patent'' with respect to the method claims while only the
TamaWrap is an ``article[ ] protected by the patent'' with respect
to the apparatus claim? If the articles protected by the patent
differ as between the apparatus and the method claims, please
provide a chart with supporting citations to the record indicating
the expenditures for each statutory category for the respective
apparatus and method claims.
(7) Can the Commission consider Deere's expenditures related to
the Deere Machines under an ``article of commerce theory''? See,
e.g., Certain Video Game Sys. & Wireless Controllers & Components
Thereof, Inv. No. 337-TA-770, Comm'n Op. at 66-70 (Oct. 28, 2013)
(Public Version) (``Video Game Sys.'').
(8) To what extent do Deere's activities related to the Deere
Machines have a direct relationship to the exploitation of the
patented technology, and to what extent can the expenditures be
considered on that basis? See, e.g., Video Game Sys., Comm'n Op. at
67-68.
(9) To what extent do the ``realities of the marketplace''
require Deere's expenditures in the Deere Machines for Tama to sell
TamaWrap (or articles practicing the Asserted Patent)? See, e.g.,
Video Game Sys., Comm'n Op. at 8.
(10) Were the expenditures related to the Deere Machines
necessary to bringing TamaWrap to the consumer market, and if so,
should the Commission consider those expenditures, and to what
extent? See, e.g., Video Game Sys., Comm'n Op. at 69-70; Certain
Digital Set-Top Boxes & Components Thereof, Inv. No. 337-TA-712,
Order No. 33 (Jan. 11, 2011), aff'd in part, Notice (July 21, 2011).
(11) Were the expenditures related to the Deere Machines central
to the exploitation of TamaWrap, and if so, should the Commission
consider those expenditures, and to what extent? See, e.g., Certain
Magnetic Tape Cartridges & Components Thereof, Inv. No. 337-TA-1058,
Comm'n Op. at 50 (Apr. 9, 2019) (Public Version); Certain Sleep-
Disordered Breathing Treatment Sys. & Components Thereof, Inv. No.
337-TA-890, Final ID at 147-50 (Sept. 16, 2014) (Public Version),
unreviewed in relevant part by Notice, (Oct. 16, 2014).
(12) With citations to record evidence and any relevant
Commission and/or judicial precedent, including, e.g., Certain In
Vitro Fertilization Products, Components Thereof, and Products
Containing the Same, Inv. No. 337-TA-1196, Dissenting Views of
Commissioners Schmidtlein and Karpel (Oct. 28, 2021), please discuss
whether Tama's domestic activities as a whole indicate that it is
more than a ``mere importer.'' Please note that this question is
different from Question 13.
(13) With citations to record evidence and any relevant
Commission and/or judicial precedent, please discuss whether Tama's
qualifying domestic activities indicate that it is more than a
``mere importer.''
(14) Please indicate how Tama's claimed investments in the
acquisition of Ambraco, components, administrative fees, and
administrative expenses qualify as investments in ``labor or
capital'' under section 337(a)(3)(B)? Please allocate those
investments with respect to the articles protected by the patent and
to those portions attributable to labor or capital.
(15) What arguments were presented to the ALJ that the amount of
Deere's investment were significant or substantial?
(16) To the extent Tama is not a mere importer and certain
domestic activities and investments with respect to the asserted
patent excluded by the final ID (see e.g., certain warehousing,
inventory, logistics, finance, invoicing, account management, and/or
promotion, marketing, and sales expenditures) should be credited as
cognizable domestic industry investments, please discuss whether
Tama's cognizable domestic industry investments (apart from any
investments by Deere) are significant or substantial within the
meaning of section 337(a)(3)(A)-(C), with citation to record
evidence.
(17) To the extent investments by Deere are considered by the
Commission along with the investments excluded by the final ID (see,
e.g., certain warehousing, inventory, logistics, finance, invoicing,
account
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management, and/or promotion, marketing, and sales expenditures)
with respect to satisfaction of the economic prong of the domestic
industry requirement under section 337(a)(3)(A)-(C), please discuss
whether domestic industry investments are significant or substantial
within the meaning of section 337(a)(3)(A)-(C), with citation to
record evidence.
In connection with the final disposition of this investigation, the
statute authorizes issuance of, inter alia, (1) an exclusion order that
could result in the exclusion of the subject articles from entry into
the United States, and/or (2) cease and desist orders that could result
in the respondents being required to cease and desist from engaging in
unfair acts in the importation and sale of such articles. Accordingly,
the Commission is interested in receiving written submissions that
address the form of remedy, if any, that should be ordered. If a party
seeks exclusion of an article from entry into the United States for
purposes other than entry for consumption, the party should so indicate
and provide information establishing that activities involving other
types of entry either are adversely affecting it or are likely to do
so. For background, see Certain Devices for Connecting Computers via
Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843, Comm'n Op.
at 7-10 (Dec. 1994).
The statute requires the Commission to consider the effects of that
remedy upon the public interest. The public interest factors the
Commission will consider include the effect that an exclusion order
and/or cease and desist orders would have on: (1) The public health and
welfare, (2) competitive conditions in the U.S. economy, (3) U.S.
production of articles that are like or directly competitive with those
that are subject to investigation, and (4) U.S. consumers. The
Commission is therefore interested in receiving written submissions
that address the aforementioned public interest factors in the context
of this investigation.
If the Commission orders some form of remedy, the U.S. Trade
Representative, as delegated by the President, has 60 days to approve,
disapprove, or take no action on the Commission's determination. See
Presidential Memorandum of July 21, 2005, 70 FR 43251 (July 26, 2005).
During this period, the subject articles would be entitled to enter the
United States under bond, in an amount determined by the Commission and
prescribed by the Secretary of the Treasury. The Commission is
therefore interested in receiving submissions concerning the amount of
the bond that should be imposed if a remedy is ordered.
Written Submissions: The parties to the investigation are requested
to file written submissions on the questions identified in this notice.
Parties to the investigation, interested government agencies, and any
other interested parties are encouraged to file written submissions on
the issues of remedy, the public interest, and bonding. Such initial
written submissions should include views on the RD that issued on
December 10, 2021.
Initial written submissions, limited to 80 pages, must be filed no
later than the close of business on March 23, 2022. Complainants are
requested to identify the form of the remedy sought and to submit
proposed remedial orders for the Commission's consideration.
Complainants are also requested to state the HTSUS subheadings under
which the accused articles are imported, and to supply identification
information for all known importers of the accused products. Reply
submissions, limited to 50 pages, must be filed no later than the close
of business on March 30, 2022. No further submissions on these issues
will be permitted unless otherwise ordered by the Commission.
Persons filing written submissions must file the original document
electronically on or before the deadlines stated above. The
Commission's paper filing requirements in 19 CFR 210.4(f) are currently
waived. 85 FR 15798 (Mar. 19, 2020). Submissions should refer to the
investigation number (``Inv. No. 337-TA-1210'') in a prominent place on
the cover page and/or the first page. (See Handbook for Electronic
Filing Procedures, <a href="https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf">https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf</a>). Persons with questions regarding
filing should contact the Secretary at (202) 205-2000.
Any person desiring to submit a document to the Commission in
confidence must request confidential treatment by marking each document
with a header indicating that the document contains confidential
information. This marking will be deemed to satisfy the request
procedure set forth in Rules 201.6(b) and 210.5(e)(2) (19 CFR 201.6(b)
& 210.5(e)(2)). Documents for which confidential treatment by the
Commission is properly sought will be treated accordingly. A redacted
non-confidential version of the document must also be filed
simultaneously with any confidential filing. All information, including
confidential business information and documents for which confidential
treatment is properly sought, submitted to the Commission for purposes
of this investigation may be disclosed to and used: (i) By the
Commission, its employees and Offices, and contract personnel (a) for
developing or maintaining the records of this or a related proceeding,
or (b) in internal investigations, audits, reviews, and evaluations
relating to the programs, personnel, and operations of the Commission
including under 5 U.S.C. Appendix 3; or (ii) by U.S. government
employees and contract personnel, solely for cybersecurity purposes.
All contract personnel will sign appropriate nondisclosure agreements.
All nonconfidential written submissions will be available for public
inspection on EDIS.
The Commission vote for this determination took place on March 9,
2022.
The authority for the Commission's determination is contained in
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and
in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR
part 210).
While temporary remote operating procedures are in place in
response to COVID-19, the Office of the Secretary is not able to serve
parties that have not retained counsel or otherwise provided a point of
contact for electronic service. Accordingly, pursuant to Commission
Rules 201.16(a) and 210.7(a)(1) (19 CFR 201.16(a), 210.7(a)(1)), the
Commission orders that the Complainant(s) complete service for any
party/parties without a method of electronic service noted on the
attached Certificate of Service and shall file proof of service on the
Electronic Document Information System (EDIS).
By order of the Commission.
Issued: March 9, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022-05384 Filed 3-14-22; 8:45 am]
BILLING CODE 7020-02-P
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